Part V Federalism, Ch.26 Legislative Competence: the Union and the States

This chapter examines the law of legislative competence in India. After providing an overview of legislative competence in the Indian Constitution, it explains the distinction between legislative power (‘competence’) and the exercise of legislative power (‘repugnance’). In particular, it considers early clashes in the money-lending litigation, the argument of Sir Walter Monckton KC and the Advice of Lord Porter in the Prafulla Kumar Mukherjee case, and the birth of ‘aspect theory’ in Indian law. It then explores how competence and repugnance have impacted the legislative relationship between the States and the Union. It argues that the failure to separate competence and repugnance has given rise to new ‘doctrines’ in India, including aspect theory, and concludes by revisiting a long-standing controversy in Indian law about the applicability of Article 254(1) to legislation outside the Concurrent List.